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March 28, 1986

KARL H. BARTELS, et al., Plaintiffs,

Goettel, D.J.

The opinion of the court was delivered by: GOETTEL


The plaintiffs seek damages for the defendants' allegedly fraudulent acts in inducing them to invest in commodity futures contracts. The plaintiffs allege that the defendants misrepresented the financial risks of commodity futures and neglected to conform to the Commodity Futures Trading Commission ("CFTC") rules in setting up the plaintiffs' accounts. Their complaint alleges violations of section 4b of the Commodity Exchange Act, 7 U.S.C. § 6b (1982) ("CEA"); section 901(a) of the Organized Crime Control Act of 1970, 18 U.S.C. § 1961 et seq. (1982) ("RICO"); and common law fraud.

 Defendant, Clayton Brokerage of St. Louis ("Clayton"), moves, pursuant to rules 9, 12, and 54 of the Federal Rules of Civil Procedure, to dismiss all three causes of action, or, alternatively, for summary judgment. For the reasons stated below Clayton's motion is granted in part and denied in part.


 The plaintiffs are a group of fifty-six foreign investors, primarily West German citizens. *fn1" Each had separate dealings with the defendants. Defendant Clayton, a Missouri corporation doing business in New York, is a Futures Commissions Merchant ("FCM") registered with the CFTC. The other named defendants are Westfield Holdings, Ltd. ("Westfield"), a corporation organized under the laws of the Cayman Islands, British West Indies; John Tunnel ("Tunnel"), a United States citizen and president of Westfield; Westfield Financial Services GmbH ("GmbH"), a wholly owned subsidiary of Westfield organized under the laws of the Federal Republic of Germany; *fn2" and Westfield Financial Services, Inc. ("Financial"). *fn3" When this motion was filed by Clayton, it was the only defendant that had been served. *fn4"

 On or before November 14, 1978, Clayton, Tunnel, Westfield, and GmbH set up a joint New York enterprise (the "Enterprise"). Tunnel and Westfield subleased space from Clayton's New York quarters at Four World Trade Center. Clayton agreed to pay Tunnel, Westfield, and GmbH a monthly fee to solicit customers for the Enterprise. The customers would open accounts with Clayton, which would execute trades in commodity futures contracts on their behalf. For every transaction in a customer's account, Clayton charged a commission. Clayton agreed to give a portion of its commissions to Tunnel and Westfield. *fn5" GmbH solicited European customers, some of whom are the plaintiffs in this action.

 After November 14, 1978, GmbH sent letters to the plaintiffs recommending investments in Treasury Bonds ("T-bonds") and gold in the commodity futures market. GmbH represented that investments in T-bonds and gold futures were relatively risk-free. *fn6" GmbH advised that it would open commodity trading accounts for European customers with Clayton, "its exclusive broker with forty years of successful trading experience." Complaint, Exhibit A. GmbH also solicited customers by phone, making many of the same representations orally.

 The plaintiffs opened accounts by returning a form *fn7" and money to GmbH. GmbH deposited this money into a German bank account opened in Clayton's name. *fn8" The money was then transferred to Clayton in New York. Clayton opened separate accounts for each plaintiff and commenced trading in T-bonds and gold futures, as well as a variety of other commodity futures. *fn9" Clayton continued trading on behalf of the plaintiffs until January 1981. *fn10"

 The plaintiffs allege that they relied on misrepresentations and omissions made by GmbH and Clayton in deciding to open their accounts and deposit money with Clayton. They assert that Clayton, as a FCM, had a duty under the CFTC rules to supervise the Enterprise. *fn11" The plaintiffs claim Clayton violated other CFTC rules by failing to (1) explain the risks of transactions in commodity futures markets; (2) obtain signed risk disclosure statements and written authorization forms prior to initiating any transactions; (3) ensure that all solicitations were accurate and free from false representations or omissions; and (4) see that all persons soliciting customers, including foreign agents, were registered with and approved by the CFTC. *fn12" The plaintiffs claim that they relied on the lawfulness and legitimacy of the Enterprise. The defendant's malfeasance, they assert, cost the plaintiffs an average of $10,000 each. *fn13"

 In 1982, some of the plaintiffs commenced an action for reparations with the CFTC pursuant to section 14 of the CEA, 7 U.S.C. § 18 (1982), which were dismissed in 1984. *fn14" They filed the instant action on September 9, 1985, claiming three causes of action: (1) violation of section 4b of the CEA; (2) common law fraud; and (3) RICO violations. Clayton moves, pursuant to rules 9, 12, and 54 of the Federal Rules of Civil Procedure, to dismiss, or, alternatively, for summary judgment. Clayton asserts four grounds for dismissal: (1) the complaint fails to state a claim on which relief can be granted because it is predicated on alleged violations of rules that have been improperly promulgated by the CFTC; (2) all three causes of action are barred by applicable statutes of limitations; (3) the complaint fails to plead fraud with the particularity required by rule 9(b) of the Federal Rules of Civil Procedure; and (4) forum non conveniens.


 Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1337 (1982) and principles of pendent jurisdiction.

 For the purposes of Clayton's motion, the pleadings are viewed in the light most favorable to the plaintiff, with all reasonable inferences drawn and any doubts or ambiguities resolved in the plaintiff's favor. See Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 115 (2d Cir. 1984); Patrick v. Le Fevre, 745 F.2d 153, 158 (2d Cir. 1984).

 A. Claims for Relief Under the CEA

 Clayton contends that the plaintiffs' claims are all predicated on alleged violations of rules invalidly promulgated by the CFTC and must, therefore, be dismissed.

 The plaintiffs' first cause of action is brought pursuant to section 4b of the CEA, 7 U.S.C. § 6b (1982). Section 4b is an antifraud provision similar to section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982). In relevant part, it reads:


It shall be unlawful (1) for any member of a contract market . . . (A) to cheat or defraud or attempt to cheat or defraud such other person; (B) wilfully to make or cause to be made to such other person any false report or statement thereof, or wilfully to enter or cause to be entered for such person any false record thereof; (C) wilfully to deceive to attempt to deceive such other person by any means whatsoever in regard to any such order or contract or the disposition or execution of any such order or contract, or in regard to any act of agency performed with respect to such order or contract for such person; . . . AND PROVIDED FURTHER, . . . such transactions shall be made in accordance with such rules and regulations as the Commission may promulgate regarding the manner of the execution of [commodity] transactions.

 7 U.S.C. § 6b (1982). Unlike other sections of the CEA, section 4b does not expressly state that violations of rules promulgated thereunder will constitute a violation of the CEA. Clayton, therefore, contends that the CFTC rules enacted using the authority of section 4b are illegitimate and that the plaintiffs may not base their claims on violations of these rules.

 Section 8a(5) of the CEA authorizes the CFTC to "promulgate such rules and regulations as . . . are reasonably necessary to effectuate the purposes of this [Act]." 7 U.S.C. § 12a(5) (1982). The purpose of the CEA is to "insur[e] fair practice and honest dealings of the commodity exchanges and [to] provid[e] a measure of control over those forms of speculative activity which often demoralize the markets to the injury of producers, customer, and the exchanges themselves." 1974 U.S. Code Cong. & Ad. News 5844. See Psimenos v. E.F. Hutton & Co., 722 F.2d 1041 (2d Cir. 1983) (One of the basic purposes of the CEA is to protect the integrity of the U.S. markets from fraudulent schemes regardless of the citizenship of the participants.). We find the CFTC rules upon which the plaintiffs base their claims to be valid because they further the purposes of the CEA -- the integrity of the commodity markets and the protection of customers from fraudulent schemes -- and especially the purposes of section 4b. *fn15"

 In addition to finding these rules to have been validly promulgated, we note that the plaintiffs' claim is brought under section 4b of the CEA and the plaintiffs' allegations of CFTC rule violations are merely evidence of their section 4b claim. We find, therefore, that the plaintiffs' first cause of action states a cognizable claim for which relief can be granted. Hence, we deny this aspect of Clayton's motion to dismiss. However, as discussed below, the plaintiffs have not pleaded their allegations of fraud with sufficient particularity to withstand defendant's challenge under Fed. R. Civ. P. 9(b). See infra slip op. at pp. 12-14.

 B. Statute of Limitations

 1. CEA Claims

 The plaintiffs' CEA claim is brought pursuant to section 4b as an implied private right of action. *fn16" An implied right of action, of necessity, does not expressly provide a timeliness rule for filing a claim. In such situations the federal court must "'borrow' the most suitable . . . timeliness statute from some other source." Delcostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). The general rule has been for federal courts to "look to the limitation periods of their forum states governing the most analogous cause of action." Fustok v. Conti-Commodity Services, Inc., 618 F. Supp. 1076, 1078 (S.D.N.Y. 1985); see Delcostello, supra, 462 U.S. at 158-59. In this case the plaintiffs' claims rest, in one way or another, on the defendants' fraudulent behavior. The most analogous state statute, in this forum, is a six-year statute of limitations for fraud. N.Y. Civ. Prac. Law & R. § 213(8) (McKinney 1972). *fn17"

 Clayton, however, argues that substantial federal interests necessitate turning away from state law and borrowing an analogous federal statute of limitations. See Delcostello, supra, 462 U.S. at 171-72 ("when federal policies are at stake and the practicalities of litigation make [a federal timeliness] rule a significantly more appropriate vehicle . . . we have not hesitated to turn away from state law.") Specifically, Clayton urges an analogy to section 22 of the CEA, 7 U.S.C. § 25 (1982), which provides for a two-year statute of limitations for private rights of action under the CEA. Clayton argues that adopting a longer limitation period for implied private rights of action will create an incentive to file private law suits rather than bringing a reparations claim before the CFTC. *fn18" In this instance, Clayton's fears of obfuscating federalism are overstated, since there is a finite group of plaintiffs with implied private actions which accrued before the 1982 amendments.

 More importantly, Congress was mindful of this problem when it established a new private cause of action and decisively stated in sections 22(d) "that [this new cause of action] shall not affect the right of any party which accrued prior to [January 11, 1983]." *fn19" 7 U.S.C. § 25(d) (1982). Therefore, since the plaintiffs' claim accrued prior to January 1983, we find it inappropriate to restrict them to the two-year limitations period of section 22 if a longer period would have been available to them for their implied right of action under section 4b. *fn20"

 Since the plaintiffs filed their action on September 9, 1985, four years after they learned of the alleged fraudulent activities of the defendants, their section 4b claims are not time barred. Clayton's motion with respect to this cause of action is, therefore, denied.

 2. Common Law Claims

 Clayton argues that the plaintiffs' common law claims are really conversion claims and, hence, barred by a three-year statute of limitations. See N.Y. Civ. Prac. Law & R. § 214(3) (McKinney 1972). As pleaded, the complaint describes the plaintiffs' reliance on certain alleged misrepresentations and omissions by the defendants in soliciting the plaintiffs to open commodity futures trading accounts. After investing in the advertised "low risk" T-bonds, the plaintiffs discovered that, not only were the risks in the T-bond futures market much greater than originally represented, but the defendants were also using the plaintiffs' money to invest in other commodities.

 Fraud is the intentional perversion of the truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him. Prosser, The Law of Torts, at 685-86 (4th ed. 1971). Misleading representations and concealments also constitute fraud. Clayton argues that in earlier reparations hearings before the CFTC, the plaintiffs alleged "churning" by defendants. Churning, or frequent trades by a broker to maximize commissions, may be conversion. Conversion is defined as the unauthorized assumption and exercise of the right of ownership over monies belonging to another and the alteration of its condition. Prosser, The Law of Torts at 83 (4th ed. 1971). The plaintiffs assert that part of the defendants' fraud was unauthorized trades in their accounts. Although the plaintiffs' complaint fails to provide sufficient details about the representations made to them, there are enough allegations to support a cognizable claim of fraud, rather than mere conversion. *fn21" Thus, Clayton's motion to dismiss the common law fraud claims as untimely is denied. We find, however, that these fraud claims have not met the requirements of rule 9(b) of the Federal Rules of Civil Procedure of pleading fraud with particularity. Therefore, we must dismiss these fraud claims with leave to replead. See infra slip op. at pp. 12-14.

 3. RICO Claims

 Clayton moves to dismiss the plaintiffs' RICO claims as time barred. RICO sets up a federal scheme that "seek[s] the eradication of organized crime in the United States . . . by establishing new penal prohibitions, . . . and new remedies to deal with unlawful activities of those engaged in organized crime." Durante Bros. & Sons, Inc. v. Flushing National Bank, 755 F.2d 239, 248 (2d Cir. 1985), cert. denied, 473 U.S. 906, 105 S. Ct. 3530, 87 L. Ed. 2d 654 (quoting Organized Crime Control Act of 1970, Pub. L. No. 91-452 84 Stat. 922 (1970) (Statement of Purpose and Findings)). Included in the statutory definition of prohibited "racketeering activity" are the crimes of securities, mail, and wire fraud. In addition, RICO establishes a far reaching civil enforcement scheme and provides a private civil action to recover treble damages for injury "by reason of a violation of" RICO's substantive provisions. 18 U.S.C. § 1964(c) (1982). RICO is the first federal statute that expressly provides for a private damage remedy for using the mails and/or wires by an enterprise in the furtherance of a pattern of fraudulent activity. *fn22" However, RICO specifies no time period for filing these civil actions.

 As noted earlier, when a federal statute does not specify a limitations period for a concomitant private right of action, courts must borrow an analogous state or federal statute of limitations. Delcostello v. International Brotherhood of Teamsters, supra, 462 U.S. at 158. Although the general rule is to borrow an analogous state statute, see supra pp. slip op. at 7-8, when federal policies are at stake, courts have not hesitated to look for a timeliness rule in federal law that provides a closer analogy. Delcostello, supra, 462 U.S. at 171-72. We believe that, since the RICO statute envisions a national policy to fight organized crime, its enforcement should proceed in as uniform a manner as possible. Were we to look to state statutes for analogous limitations periods we would defeat the uniform federal enforcement of RICO and encourage forum shopping. Different states may have varying limitations periods for the same underlying crimes (e.g., fraud). If a plaintiff's claim was untimely in one state he might shop to find another forum where his claim would not be barred.

 Clayton allegedly received monies transferred over wires as a part of a larger pattern of fraudulent activity in commodity trading. An analogous federal statute is section 4b of the CEA which makes it unlawful "for any member of a contract market, . . . to cheat or defraud [or to] wilfully . . . [make] . . . any false report or statement [to another person]." 7 U.S.C. § 6b (1982). A private right of action for CEA violations is now governed by a two-year statute of limitations. 7 U.S.C. § 25 (1982). In view of the need for uniformity in administering civil RICO actions and the fact that the plaintiffs' allegations rest on violations of section 4b of the CEA and CFTC rules, we find it proper to borrow section 22(d) of the CEA for the plaintiffs' RICO claims. *fn23" These claims are, therefore, untimely and Clayton's motion to dismiss plaintiffs' RICO claims is granted.

 C. Rule 9(b)

 Clayton moves to dismiss the plaintiffs' fraud claims for failing to plead fraud with the particularity required under Fed. R. Civ. P. 9(b). The Federal Rules of Civil Procedure mandate a "short plain statement [showing] that [a] pleader is entitled to relief." Fed. R. Civ. P. 8. However, rule 9(b) demands that fraud "be stated with particularity," and thus, requires more than a "short plain statement." Hence, it is insufficient in pleading fraud to merely set forth generalized allegations.

 The Federal Rules recognize that there is a propensity to make frivolous claims of fraud which may irreparably harm the reputation of a defendant. Decker v. Massey-Ferguson, Ltd., 681 F.2d 111, 114 (2d Cir. 1982). In security fraud cases, strike suits are a common pretext to engage in costly discovery, after which, in many instances, the fraud claims evaporate. Segal v. Gordon, 467 F.2d 602, 607 (2d Cir. 1972); Gross v. Diversified Mortgage Investors, 431 F. Supp. 1080, 1087 (S.D.N.Y. 1977), aff'd mem., 636 F.2d 1201 (2d Cir. 1980).

 For a complaint to pass muster in this district it must allege, with some specificity, the acts constituting fraud. Rodman v. Grant Foundation, 608 F.2d 64, 73 (2d Cir. 1979) (emphasis added). A conclusory allegation that defendant's conduct was fraudulent, contained misrepresentations, or was deceptive is not sufficient. Segal v. Gordon, supra, 467 F.2d at 606. Thus, a plaintiff must plead facts that give rise to an inference of fraud, Posner v. Coopers & Lybrand, 92 F.R.D. 765, 768 (S.D.N.Y. 1981), aff'd, 697 F.2d 296 (2d Cir. 1982), and adequately apprise the defendant of the misconduct complained of. Gross v. Diversified Mortgage Investors, supra, 431 F. Supp. at 1087. See Todd v. Oppenheimer & Co., 78 F.R.D. 415, 422-23 (S.D.N.Y. 1978). The defendant can then prepare a defense.

 To be deemed sufficient, a complaint must identify "'1) precisely what statements were made, and 2) the time and place of each statement and the person responsible for making [or], (in the case of [an] omission, not making) the same, 3) the content of such statements and the manner in which they misled the plaintiff, [and] 4) what the defendants obtained as a consequence of the fraud.'" Fidenas A.G. v. Honeywell, Inc., 501 F. Supp. 1029, 1039 (S.D.N.Y. 1980) (quoting Todd v. Oppenheimer, supra, 78 F.R.D. at 420-21). Accord Conan Properties, Inc. v. Mattel Inc., 619 F. Supp. 1167 (S.D.N.Y. 1985). Here, the plaintiffs' complaint fails to detail or document 1) the precise relationship among the defendants; 2) how their accounts were set up and by whom; 3) what forms plaintiffs signed; and 4) what those forms authorized. Furthermore, the plaintiffs fail to particularize the exact acts that constitute fraud -- what disclosures of risk were made and what omissions were later discovered -- on which this entire action is based.

 Plaintiffs' complaint makes only general allegations and fails to specify the acts constituting fraud. Therefore, we must dismiss the plaintiffs' first and second causes of action (CEA violations and common law fraud), with leave to replead within 30 days. *fn24"

 D. Forum Non Conveniens

 Clayton also moves to dismiss this action on grounds of forum non conveniens. The threshold requirement in considering the dismissal of a forum non conveniens motion is the existence of an alternative forum. Gulf Oil v. Gilbert, 330 U.S. 501, 505, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). Clayton has consented to jurisdiction in Germany should we grant the instant application. However, there remains an issue of whether the plaintiffs have an adequate remedy if this action were brought under German law. We find it premature to decide this issue because the pleadings before us do not provide the necessary facts to weigh the relative interests for a change of forum.

 A plaintiff's choice of forum will generally remain undisturbed unless, in the court's discretion, the private interests of the parties and the public interest of the forum are found to be oppressive to the defendant. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). In this action it is as yet uncertain whether the acts complained of by the plaintiffs and the relevant evidence and witnesses are located primarily in New York or in West Germany. When the plaintiffs replead their complaint with greater specificity, the Court will be in a better position to weigh the relevant forum non conveniens factors. The Court, therefore, denies this aspect of Clayton's motion with leave to renew.


 The plaintiffs' complaint states a cognizable cause of action under the CEA. Both the plaintiffs' claim brought pursuant to section 4b of the CEA and the claim for common law fraud are governed by a six-year timeliness rule, N.Y. Civ. Prac. Law & R. § 213(8), and, hence, are not time barred. However, both of these claims are dismissed, with leave to replead within 30 days, for failing to meet Fed. R. Civ. P. 9(b) requirements.

 The plaintiffs' RICO claim, brought pursuant to 18 U.S.C. § 1961 et seq. (1982), is governed by a two-year statute of limitations borrowed from an analogous federal statute, section 22(d) of the CEA, 7 U.S.C. § 25(d) (1982), and is, therefore, time barred.

 Clayton's motion to dismiss for forum non conveniens is denied with leave to renew.


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